Game Theory and the Filibuster
Ed Kilgore, who is not a hypocrite, still advocates limited use of the filibuster even now that Republicans have a Senate majority. He wrote
The filibuster has always been a monstrous but mitigated abuse—monstrous in its antidemocratic pretensions but mitigated by rare use. I see little reason for its use right now when the president has the power to veto any legislation that might succumb to a filibuster. And even if the power to filibuster is formally preserved, this would seem to be an ideal time to get out of the habit of deploying it.
I basically agree with him. In particular, I think Democratic Senators should end the filibuster of the motion to open debate on the bill to fund DHS and forbid DACA and DAPA act (Obama’s immigration executiver orders).
However, I can make an argument that the veto isn’t always as good as a filibuster. The reason is that, in game theory, but also in reality, timing can matter a lot.
I don’t think that, so long as a Democrat is in the White House, Democrats can’t derive any benefit at all from the filibuster. With must pass bills, timing matters. Congress can send the President a bill to, say, raise the debt ceiling and repeal Obamacare. If there really isn’t time to pass another bill before the US defaults, this is a take it or leave it offer. In bargaining timing is critical — the last mover has almost no bargaining power.
I don’t think the current filibuster is such a case. Democrats can allow DHS funding to lapse. This is unfair to the many DHS employees who will be required to work and wait to be paid later. But Republicans in Congress will bear most of the blame.
Again, I agree with filibuster restraint. I would support simultaneously eliminating the filibuster and eliminating the debt ceiling. I guess that, on balance, I would support eliminating the filibuster even without eliminating the debt ceiling.
But wait there’s less. Even less reason to filibuster than Kilgore suggests. Consider the filibustered motion to open debate on the House fund DHS and no deferred action fof DREAMERs resolution. The CBO has scored the bill as adding to the deficit (via Kerry Eleveld). Therefore, according to Senate rules it is out of order. If even one senator raises this point of order, to pass it would require a waiver of the rules which would require 60 votes. There is no need to use the filibuster in this case. PayGo will do just as well.
The only conceivable reason to use the filibuster would be as a tool to negotiate mitigating provisions to a bill or possibly to force a situation where very politically controversial riders were stripped out of basic funding bills.
The problem with this calculation is that the House cannot be considered a “rational actor” at this point. Boehner can’t control his conference which means standard game playing theories might not work very well.
Democrats might be better off from a political standpoint by letting Republicans lard up legislation with “crazy” and making hay of that while using the presidential veto as a backstop. The only slight problem with that calculation is that it relies on Obama 2.0 which isn’t conciliatory or in search of a grand bargain.
Now is the time for Democrats to push for filibuster reform. It’s the right thing to do and while they are in the minority it can’t be argued that it’s self-serving.
There are plenty of ways to ensure minority party voice without resorting to the hard filibuster that requires a super-majority to pass virtually everything. Allowing a limited filibuster that has a reducing standard for cloture as time passes might make sense.
Democrats claim to be the party that stands for fair and impartial procedure but too often they only fight for those principles when it’s convenient. When Democrats controlled the North Carolina legislature there were all kinds of calls for apportionment and redistricting reform, going to a model of a non-partisan commission or better a purely empirical computer model with a non-partisan resolution procedure for the few instances where the computer drawn districts didn’t work.
When they held the legislature Dems dragged their feet. Then they lost the legislature and got gerrymandered into hell.
Doing the right things shouldn’t be that difficult.
What would the Senate Democrats get for dropping their filibuster? Definitely nothing now.They’d lose on immigration having demonstrated their half hearted support. They wouldn’t get brownie points for being tough on defense. There is no reason for them to fold before the 28th. In fact, there is little reason for them to fold for quite a while if this Republican shutdown plays out like the others.
If the Republicans feel that the immigration issue is so important that they are willing to hamstring the DHS, then let them do it.
The Senate Democrats should know this game by now. Sure, Obama might come in with a veto, but they would pay at the next election. Sometimes relying on a veto makes good sense. NY Governor Hugh Carey used his veto so that fellow party members could vote against abortion, but they were helping Carey on other issues. This is nothing like the situation today.
This is going to be a Democratic shutdown if it comes to it. Which doesn’t bother me much, but normal perceptual concepts will apply, which are that those employing a filibuster are preventing action. Republicans accepted this mostly with indifference when they were in the Senate minority and I am confident Democrats can muster the same equanimity.